(dissenting). — I am constrained to dissent from the conclusions announced by my associates in this case for the reason that, upon the facts disclosed by the record and clearly stated in the opinion of the majority of the court, I am unable to see wherein the appellant was guilty -of any negligence whatever. It does not appear that the engine was defective in any of its parts, or that it was not being used with ordinary care. It is evident that the respondent would not have been injured as he was if the engine had not been put in motion by the application of external force to the throttle lever, which was designed and used to start and to stop it. And I think it may be said, as matter of law, under the circumstances revealed by the record, that it was not incumbent on the appellant to anticipate or provide against the possibility that the respondent might voluntarily or involuntarily move the lever, and thus set the machinery in motion. He was not called upon to do anything involving the use of the lever, or even the engine, and hence there was no occasion or duty to warn him not to meddle therewith. ■ In short, it seems to me that respondent’s injury was the result of a mere accident, for which appellant ought not to be held responsible; and, if I am correct in this conclusion, it follows that this case does not fall within the rules announced in the cases cited in the majority opinion.
I think the judgment should be reversed.